Citation Nr: 0607913
Decision Date: 03/17/06 Archive Date: 03/29/06
DOCKET NO. 00-16 559A ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in New Orleans, Louisiana
THE ISSUE
Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for a
back disorder.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
W. Yates, Counsel
INTRODUCTION
The veteran served on active duty from December 1990 to July
1991.
This case came to the Board of Veterans' Appeals (Board) from
RO decisions, dated in August 2001 and in January 2002, which
found that new and material evidence had not been submitted
to reopen the veteran's claim seeking service connection for
a back disorder.
FINDINGS OF FACT
1. In September 1999, the Board denied service connection
for a back disorder.
2. Evidence received since the Board's September 1999
decision is cumulative or redundant, or it is not so
significant that it must be considered in order to fairly
decide the merits of the claim of entitlement to service
connection for a back disorder.
CONCLUSION OF LAW
New and material evidence has not been submitted sufficient
to reopen a claim for service connection for a back disorder,
and the September 1999 Board decision is final. 38 U.S.C.A.
§§ 5108, 7104 (West 2002); 38 C.F.R. § 3.156(a) (2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran is seeking to reopen her claim of service
connection for a back disorder, which was previously denied
in a September 1999 Board decision. That decision is final,
with the exception that the claim may be reopened if new and
material evidence has been submitted since then, and if so
reopened, the claim will be reviewed on a de novo basis. 38
U.S.C.A. §§ 5108, 7104; Evans v. Brown, 9 Vet. App. 273
(1996); Manio v. Derwinski, 1 Vet. App. 140 (1991).
New and material evidence means evidence not previously
submitted to agency decisionmakers which bears directly and
substantially upon the specific matter under consideration,
which is neither cumulative nor redundant, and which by
itself or in connection with evidence previously assembled is
so significant that it must be considered in order to fairly
decide the merits of the claim. 38 C.F.R. § 3.156(a) (2001);
see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The
claimant does not have to demonstrate that the new evidence
would probably change the outcome of the prior denial.
Rather, it is important that there be a complete record upon
which the claim can be evaluated, and some new evidence may
contribute to a more complete picture of the circumstances
surrounding the origin of a claimant's injury or disability.
Hodge, 155 F.3d at 1363.
The Board notes that the standard for new and material
evidence was recently amended. See 38 C.F.R. § 3.156(a)
(2005). However, that amendment applies only to claims to
reopen received on or after August 29, 2001. See 66 Fed. Reg.
45620 (Aug. 29, 2001). Since the veteran's attempt to reopen
her claims for service connection herein were received before
that date, the law in effect when the claim was filed is
applicable. That is the standard discussed above.
The Board's September 1999 decision concluded that the
veteran's back disorder, diagnosed as degenerative arthritis,
clearly and unmistakably pre-existed her period of active
duty service, and that this condition was not shown to have
chronically worsened or increased in severity during service.
The Board's decision further found that any worsening or
increase in severity of the veteran's underlying back
disorder during service was due to the natural progress of
the disease.
Evidence considered at the time of the Board's September 1999
decision includes, in pertinent part, the veteran's service
medical and personnel records, post service treatment
records, beginning just after the veteran's discharge from
active duty service, a VA examination of the spine, performed
in October 1992, and a second VA medical examination of the
spine, performed in October 1995, with an addendum noting, in
essence, the VA examiner's opinion that: (1) the veteran had
a back disability upon entering active duty service; (2) none
of the evidence showed any worsening of this disability
during service; (3) clear and unmistakable evidence
demonstrated that any increase in severity was probably due
to the "natural progress" of the disease; (4) the veteran's
back symptoms in service did not render her more susceptible
to such symptoms later; and (5) any worsening of the
disability could have been expected to have been found at the
time of the separation examination.
Finally, there was a July 1999 VA examination report, which
concluded that it was exceedingly unlikely that the veteran
had a current back disability which was either incurred in or
chronically aggravated by her military service.
The evidence received subsequent to the Board September 1999
decision is presumed credible for the purposes of reopening a
claim unless it is inherently false or untrue, or it is
beyond the competence of the person making the assertion.
Duran v. Brown, 7 Vet. App. 216, 220 (1995); Justus v.
Principi, 3 Vet. App. 510, 513 (1992). See also Robinette v.
Brown, 8 Vet. App. 69, 75-76 (1995).
In support of her present claim to reopen, the veteran has
submitted post service medical records, dated from 1996 to
2003, showing ongoing treatment for degenerative disc disease
and mild scoliosis of the back. Although new, this evidence
is found to be not material in that it fails to indicate that
the veteran's condition was aggravated or caused by her
service.
In addition to her medical records, the veteran presented
statements and testimony where she basically reiterates her
contentions which were previously before the Board at the
time of the September 1999 decision. The veteran's lay
statements, and testimony, in this regard are cumulative or
redundant, not new. Vargas-Gonzales v. West, 12 Vet. App.
321 (1999).
The critical question before the VA is a medical
determination: Was the veteran's back disorder caused or
aggravated by her military service? Without the appropriate
medical training and expertise, the veteran is not competent
to offer a probative opinion on a medical matter, such as
with respect to the etiology of a claimed disability. See
Bostain v. West , 11 Vet. App. 124, 127 (1998), citing
Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also
Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson
is generally not capable of opining on matters requiring
medical knowledge"). Where, as here, resolution of an issue
under consideration turns on a medical matter, an unsupported
lay statement, even if new, cannot serve as a predicate to
reopen a previously disallowed claim. See Moray v. Brown, 5
Vet. App. 211, 214 (1993). While the veteran would be
competent to testify that an injury in service occurred, she
is not competent to diagnosis the etiology of a medical
condition.
The Board concludes that new and material evidence has not
been submitted since the September 1999 Board decision which
denied service connection for a back disorder. Thus, the
claim has not been reopened, and the Board's September 1999
decision remains final.
Duty to Notify and Assist
VA has certain notice and assistance requirements. See
38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R.
§§ 3.102, 3.156, 3.159, 3.326.
In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the U.S.
Court of Appeals for Veterans Claims held, in part, that
notice, as required by 38 U.S.C.A. § 5103(a), must be
provided to a claimant before the initial unfavorable agency
of original jurisdiction (AOJ) decision on a claim for VA
benefits, and must (1) inform the claimant about the
information and evidence not of record that is necessary to
substantiate the claim; (2) inform the claimant about the
information and evidence that VA will seek to provide; (3)
inform the claimant about the information and evidence the
claimant is expected to provide; and (4) request or tell the
claimant to provide any evidence in the claimant's possession
that pertains to the claim. 18 Vet. App. at 120-121.
The RO's letters, rating actions, statements of the case,
supplemental statements, and the Board's prior remand,
advised the veteran what information and evidence was needed
to substantiate her claims herein and what information and
evidence had to be submitted by her, namely, any additional
evidence and argument concerning the claimed conditions and
enough information for the RO to request records from the
sources identified by the veteran. The documents also
advised her what information and evidence would be obtained
by VA, namely, records like medical records, employment
records, and records from other Federal agencies. Thus, the
Board finds that the content requirements of the notice VA is
to provide have been met.
Further, the Board finds that any defect with respect to the
timing of the notice requirement was harmless error.
Although complete notice may not have been provided to the
appellant prior the initial adjudication, the appellant has
not been prejudiced thereby. The content of the notice
provided to the appellant fully complied with the
requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. §
3.159(b) regarding VA's duty to notify. Also, the appellant
has been provided with every opportunity to submit evidence
and argument in support of her claim, to respond to VA
notices, and otherwise afforded a meaningful opportunity to
participate effectively in the processing of her claim.
Thus, the Board considers any defect in the timing of the
notice provided to the veteran to be harmless.
With respect to the VA's duty to assist, the RO obtained, or
made reasonable attempts to obtain, all relevant evidence
identified by the veteran. Thus, the Board considers the
VA's duty to assist is satisfied.
In the circumstances of this case, VA has satisfied its
duties to inform and assist the veteran at every stage of
this case as it pertains to the claim herein adjudicated.
Therefore, she will not be prejudiced as a result of the
Board proceeding to the merits of the claim.
ORDER
The application to reopen the claim for service connection
for a back disorder is denied.
____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs